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Hence, if a party to any of the specified ‘family matters’ requires state funding, they will have to be assessed for suitability for mediation as a means to resolve the dispute, rather than being granted state funding for purely legal representation. The Funding Code sets out the procedure to be applied, and also 28 2 Divorce establishes the situations where an assessment for mediation suitability is not appropriate. An applicant for state funding will not be required to undergo a mediation assessment: Ü if the proceedings are under s 37 MCA 1973; Ü if the proceedings are under the Inheritance (Provision for Family and Dependants) Act 1975; Ü where it is in the interests of justice that legal Ü Ü Ü Ü representation be granted as a matter of urgency and the criteria for emergency representation are satisfied; where there is no mediator available to the applicant or any party to the proceedings to hold the assessment meeting; where the mediator is satisfied that mediation is not suitable to the dispute because another party to the dispute is unwilling to attend an assessment meeting with a mediator to consider mediation; where family proceedings are already in existence and the client is a respondent to the proceedings and there are less than eight weeks to the court hearing date; and where the applicant has a reasonable fear of domestic abuse from a potential party to the mediation and is therefore unwilling and fearful of mediating with them.

51 4 Family Homes and Domestic Violence Part IV of the Family Law Act 1996 This deals with the reform of measures relating to the difficult area of domestic violence, which were previously contained in the Matrimonial Homes Act 1983, the Domestic Violence and Matrimonial Proceedings Act 1976 and the Domestic Proceedings and Magistrates’ Courts Act 1978. In Richards v Richards (1984), Scarman LJ described the situation as he saw it: The statutory provision is a hotchpotch of enactments of limited scope, passed into law to meet specific situations or to strengthen the powers of specified courts.

Should mediation be deemed appropriate following the assessment meeting and then fail to resolve the issue, the applicant may request state funding for legal assistance. This request will require additional consideration of the reasons for the failure of mediation and whether the applicant behaved reasonably throughout the mediation. If mediation fails, it cannot be assumed that funding for legal advice will then be granted. The efficacy of mediation compared to legal advice and representation has been considered by Gwynn Davis et al, Monitoring Publicly Funded Family Mediation (2000).